PANNELL v. ZICKEFOOSE

Filing 14

OPINION. Signed by Judge Noel L. Hillman on 8/3/2016. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DERREK PANNELL,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondent.

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HON. NOEL L. HILLMAN
Civil No. 12-6040 (NLH)

OPINION

APPEARANCES:
DERREK PANNELL, #74386-053
FCI Allenwood Low
P.O. Box 1000
White Deer, PA 17887
Petitioner Pro Se
JOHN ANDREW RUYMANN, Assistant U.S. Attorney
PAUL J. FISHMAN, United States Attorney
402 E. State Street
Trenton, NJ 08608
Attorneys for Respondents
HILLMAN, District Judge
Derrek Pannell filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2241 seeking restoration of good conduct time
forfeited as a disciplinary sanction by the Bureau of Prison’s
(“BOP”).

Respondent filed an Answer, together with the

declaration of Tara Moran and relevant documents, arguing that
the Petition should be dismissed.

For the reasons expressed

below, this Court will dismiss the Petition.

I.

BACKGROUND

Pannell challenges the loss of 40 days of earned good
conduct time, forfeited as a disciplinary sanction for
possession of a hazardous tool – cell phone ear buds - in
violation of code 108, while he was confined at FCI Fort Dix on
December 2, 2010.1

The report of the Discipline Hearing Officer

dated May 6, 2011, relied on the following evidence:
I find that on or about December 2, 2010 . . , you did
commit the prohibited act of Possessing a hazardous
tool, a cell phone ear buds.
This decision is based on the evidence provided before
me which is documented in the written report provided
by the reporting employee. The employee documented,
“On December 2, 2010 at approximately 9:10 p.m. I was
conducting a random shakedown in room 232-6L of unit
5812. I found a BLACK LG CELL PHONE EAR PIECE in the
middle of a toilet paper roll, that was on the fourth
shelf in the back of inmate Pannell, Derrek, #74386053 secure wall locker. Operation Lieutenant was
notified. Inmate Pannell is in violation of code 305
for possession of anything not authorized.”
To the extent that Petitioner challenges the loss of
commissary, telephone, and visitation privileges and
disciplinary segregation, these claims are not cognizable under
28 U.S.C. § 2241 because they do not affect the fact or duration
of Petitioner’s confinement. See Ganim v. Fed. Bureau of
Prisons, 235 F. App’x 882 (3d Cir. 2007); Bronson v. Demming, 56
F. App’x 551 (3d Cir. 2002); Woodall v. Fed. Bureau of Prisons,
432 F.3d 235, 242 n.5 (3d Cir. 2005). Alternatively, while the
Due Process Clause protects against the revocation of good
conduct time, it does not protect against loss of privileges or
30 days of disciplinary confinement. See Sandin v. Conner, 515
U.S. 472 (1995); Torres v. Fauver, 292 F. 3d 141, 150-51 (3d
Cir. 2002).
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The DHO took into consideration your statements,
specifically, “I picked up that item from the table
that day. I asked Jones if it was his he replied no.
I put it in my locker not knowing exactly what it
was[,]” as corroborating the incident report.
Additionally, you are responsible to insure your
assigned area remains contraband free[. T]herefore
you are responsible for the contents in your assigned
locker.
The violation of prohibited act Code 108, Possession
of a Hazardous Tool, is supported in the incident
report . . . Based upon the evidence provided before
me, your actions are consistent with a violation Code
108 – Possession of a hazardous tool.
(ECF No. 13-1 at 28.)
The final administrative decision, issued by Harrell Watts,
Administrator of the BOP’s National Inmate Appeals, is dated
August 15, 2012.

Watts upheld the Disciplinary Hearing Officer

as follows:
Review of the record reveals that “an electronic
communication device or related equipment” may be
charged as a code 108 offense. The memorandum posted
at FCI Fort Dix gave inmates sufficient notice that
possession of a cell phone constitutes a violation of
Code 108 . . . Further, including cell phones under
that rule would not require a formal rule change under
the APA. We find it reasonable for the DHO to have
made this determination based on a review of the
evidence. Although you dispute the charge, the
evidence is sufficient to support the decision
rendered.
(ECF No. 13-1 at 14.)

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Pannell challenges the loss of good conduct time on the
following grounds:

(1) “[t]his petitioner . . . received no

legal notice that the offense for which he was charged, ‘.
..possession of electronic equipment associated with a cell
phone. . .’, had been elevated from a PAC 305 to a PAC 108” (ECF
No. 1 at 6); (2) the inclusion of possession of a cell phone ear
bud as a violation of Code 108 violates the Administrative
Procedures Act (ECF No. 1 at 10-11); (3) Code 108 is
unconstitutionally void because it did not clearly prohibit
possession of a cell phone ear bud (ECF No. 1 at 12); and (4)
the BOP violated Petitioner’s right to equal protection by
charging other prisoners who possessed communication devices
with a lesser disciplinary charge, Code 305, carrying lesser
sanctions (ECF No. 1 at 13).
The BOP filed an Answer, declaration and exhibits, arguing
that the Petition should be dismissed on the merits because
Petitioner received due process, code 108 is not
unconstitutionally vague, the BOP did not violate the
Administrative Procedures Act, and Petitioner was not treated
differently than similarly situated prisoners.

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(ECF No. 13.)

II.
A.

DISCUSSION

Jurisdiction
Section 2241 of Title 28 of the United States Code provides

in relevant part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions
. . . .
(c) The writ of habeas corpus shall not
extend to a prisoner unless– . . . He is in
custody in violation of the Constitution or
laws or treaties of the United States.
28 U.S.C. § 2241(a), (c)(3).
This Court has subject matter jurisdiction under § 2241 to
consider the instant Petition because Petitioner challenges the
loss of sentence-reducing good conduct time on constitutional
grounds, see Muhammad v. Close, 540 U.S. 749, 750 (2004)
(“Challenges to the validity of any confinement or to
particulars affecting its duration are the province of habeas
corpus . . . [and] requests for relief turning on circumstances
of confinement may be presented in a § 1983 [or Bivens]
action”); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir.
1991), and he was incarcerated at FCI Fort Dix in New Jersey at
the time he filed the Petition.

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B.

Due Process and Administrative Procedures Act Claims
“[A] prisoner has a constitutionally protected liberty

interest in good time credit.” Young v. Kann, 926 F.2d 1396,
1399 (3d Cir. 1991).

Pannell argues that his right to due

process was violated because he received no notice that the
penalty for possession of cell phone ear buds had increased from
a moderate disciplinary code violation of code 305 to a
disciplinary violation of the greatest severity under code 108.
He contends that the increase in the penalty was not in
compliance with the Administrative Procedures Act and he
therefore received no notice of the penalty increase.
BOP regulations authorize the BOP to impose sanctions when
an inmate is found to have committed a prohibited act. See 28
C.F.R. § 541.3(b).

In 2010, prohibited acts under BOP

regulations defined code 108 as follows:

“Possession,

manufacture, or introduction of a hazardous tool (Tools most
likely to be used in an escape or escape attempt or to serve as
weapons capable of doing serious bodily harm to others; or those
hazardous to institutional security or personal safety; e.g.,
hack-saw blade).” 28 C.F.R. § 541.13, Table 3.2

The BOP’s

The relevant regulation was revised on March 1, 2011, effective
June 20, 2011. See 76 Fed. Reg. 11079. The present version of
the regulation specifically includes a portable telephone,
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interpretation of its own regulation is “controlling . . .
unless it is plainly erroneous or inconsistent with the
regulation.”
Cir. 2001).

Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 389 (3d
The BOP’s definition of hazardous tool to include

cell phone ear buds is not plainly erroneous or inconsistent
with BOP regulations.

See Hicks v. Yost, 377 F. App’x. 223 (3d

Cir. 2010) (holding that the BOP’s definition of hazardous tool
in code 108 to include a cell phone is not plainly erroneous or
inconsistent with BOP regulations); McGill v. Martinez, 348 F.
App’x 718 (3d Cir. 2009) (holding that, where officer found a
cell phone and a charger in petitioner’s cubicle, the BOP did
not violate due process or abuse its discretion in sanctioning
him with 40 days of good conduct time for possession of
hazardous tool, code 108); Robinson v. Warden, FCI Fort Dix, 250
F. App’x 462, 464 (3d Cir. 2007) (“The BOP’s definition of a
hazardous tool to include a cell phone is not plainly erroneous
or inconsistent with BOP regulations, see Chong v. Dist. Dir.,
I.N.S., 264 F. 3d 378, 389 (3d Cir. 2001), and Robinson’s
conduct clearly falls within Code 108").

pager, or other electronic device as a hazardous tool. See 28
C.F.R. § 541.3, Table 1, Prohibited Acts and Available
Sanctions.
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In addition, the Third Circuit rejected the Administrative
Procedure Act claim which Pannell raises in Ryan v. Scism, 474
F. App’x 49 (3d Cir. 2012).

In Ryan, the Third Circuit ruled:

The APA requires that general notice of the proposed
regulation be published in the Federal Register and
that interested persons be given an opportunity to
comment on the proposed regulation. The APA applies
only to legislative rules, rules that impose new
duties upon the regulated party. PAC 108, however, is
an interpretive rule, and therefore the APA does not
apply . . . . BOP acted within its authority in
interpreting PAC 108, and Ryan has not shown that
BOP’s interpretation that the possession of cellular
phone is a prohibited act under PAC 108 is plainly
erroneous or inconsistent with the regulation.
Ryan v. Scism, 474 F. App’x at 51-52 (citations omitted).
Pannell further argues that code 108 is unconstitutionally
void for vagueness.

A regulation is void for vagueness if it

(1) “fails to provide people or ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits,”
or (2) “authorizes or even encourages arbitrary and
discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732
(2000).

In Ryan, the Third Circuit rejected the claim that code

108 is unconstitutionally void for vagueness, finding that
“[o]ne can readily infer from the language of PAC 108 that a
cellular phone would be among those tools hazardous to
institutional security and likely to be used in an escape or
escape attempt.” Ryan, 474 F. App’x at 52.
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C.

Equal Protection
Pannell also contends that the BOP violated his right to

equal protection by charging other prisoners who possessed cell
phones or similar items with violation of code 305, a lesser
disciplinary charge.

He alleges that the BOP downgraded the

charges of inmate Neagle and restored Neagle’s good time credits
in Neagle v. Zickefoose, Civ. No. 09-2016 (NLH)(D.N.J. filed
Apr. 29, 2009).3
The Equal Protection Clause requires that all people
similarly situated be treated alike.

See City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

A person who

alleges an equal protection violation has the burden of proving
the existence of purposeful discrimination that had a
discriminatory effect on him.

See McCleskey v. Kemp, 481 U.S.

279, 292 (1987); Whitus v. Georgia, 385 U.S. 545, 550 (1967).
“Thus, to prevail under the Equal Protection Clause,
[petitioner] must prove that the decisionmakers in his case
acted with discriminatory purpose.” McCleskey, 481 U.S. at 292.
The problem with Petitioner’s equal protection claim is
that he has not shown that his disciplinary sanction was the

In that case, Respondent stated in the answer that the Code 108
infraction was expunged from Neagle’s record. See Neagle, Civ.
No. 09-2016 (NLH) slip op. (D.N.J. June 18, 2010).
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result of purposeful discrimination.
protection claim fails.

Accordingly, his equal

See Ryan, 474 F. App’x at 52 (holding

that BOP did not violate equal protection by charging other
inmates, including inmate Neagle, with a lesser charge); Millard
v. Hufford, 415 F. App’x 348, 349-50 (3d Cir. 2011) (“Millard
cited various cases in which inmates received less severe
punishment for the same violation committed by Millard
(possession of a weapon), arguing that because he received
harsher punishment than other inmates for the same offense, the
punishment must have been the result of discrimination . . . .
Millard’s argument falls well short of establishing the
purposeful discrimination necessary to make out an equal
protection claim”).
III. CONCLUSION
For the reasons set forth above, the Court will dismiss the
Petition for a Writ of Habeas Corpus.

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:

August 3, 2016

At Camden, New Jersey

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